Постановление ЕСПЧ <Дело Давыдов и другие (Davydov and Others) против России> (жалоба N 75947/11) [англ.] Часть 6

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  1. Merits

 

  1. The parties’ submissions

(a) The applicants

  1. The applicants essentially reiterated their initial complaints. In particular, they argued that the “recounts” and the resulting differences in the results, none of which was contested by the Government, constituted a major breach of the right to free elections. The applicants could not accept that the results recorded in dozens of precincts, by full compositions of PECs and in the presence of observers and journalists, were erroneous while the recounts, carried out under unclear circumstances and for dubious reasons, better reflected the voters’ intentions. The applicants stressed that it was not permissible to exclude some of the members of electoral commissions and observers from recounts – which was in effect what had occurred. The results of the recounts largely benefitted the ruling party, to the detriment of the opposition parties. As an example, the applicants referred to electoral division no. 22, where recounts were conducted in twenty-nine of the thirty-four precincts (85% of votes cast) and where, as a result, ER had gained in each precinct between 200 and 440 votes, while SR had lost votes in all precincts (see paragraphs 37 and 163 above). The applicants were of the opinion that the Government had failed to clarify a number of important points about the recounts, such as the exact timing and place of this exercise, and had failed to submit a number of important documents, including copies of the “original”, “pre-recount” results protocols.
  2. The applicants stressed that the Government, as the domestic authorities, had not argued that the “original” results protocols were incorrect or that they had been falsified. The challenges to the authenticity of these documents were limited to purely formal requirements. In any event, these formal requirements were applicable to the work of the PECs concerned, and could not be held against the applicants, who had simply obtained the copies, duly signed and stamped, from the officials in charge.
  3. The applicants stressed once again that they had not had an effective hearing of their complaints in any domestic forum. The electoral commissions had been directly involved in the falsifications, and had defended their chairmen and members who could have been implicated. The law-enforcement authorities, under all pretexts, avoided mounting an investigation into their allegations. The courts also proved complacent, and refrained from addressing the substance of their numerous and well-documented complaints. The applicants concluded that they had faced “systemic, endemic and concordant” behaviour on the part of all State authorities, demonstrating a lack of independence by any of them. The extent of falsifications and the striking similarities in the methods pointed, in the applicants’ opinion, to the existence of a technique which had been premeditated and then set in motion. In such circumstances, any attempts to obtain redress at the national level became futile.

(b) The Government

  1. The Government’s extensive observations are contained in their memorandum of 14 October 2014 and additional observations of 22 May 2015. Their position can be summarised as follows.

(i) General arguments on the existence of limitations, aims and proportionality

  1. In their additional observations submitted on 22 May 2015, the Government argued that where some of the applicants had complained in their capacity as voters the facts had not disclosed any breaches of Article 3 of Protocol No. 1 to the Convention, because they had been able to cast their votes freely and without any interference. They drew an analogy with the Court’s findings in the judgment of Russian Conservative Party of Entrepreneurs and Others v. Russia (nos. 55066/00 and 55638/00, §§ 75 and 79, 11 January 2007). Equally, they stated, the applicants’ complaints about breaches of the passive aspect of the right to free elections had been based on assumptions and unconfirmed conjecture about the voters’ intentions.
  2. First, the Government argued that there had been no limitation of the applicants’ rights guaranteed under Article 3 of Protocol No. 1 to the Convention. They stressed that the applicants had been able to cast their votes freely, or to present their candidatures for election. There has been no State interference with the free expression of the will of the people at any stage of the process; the voters were able to cast their votes; the results were correctly assessed and recorded; all complaints lodged were effectively reviewed. In respect of the applicants who had complained about breaches of their passive electoral rights, the Government reiterated that they had been able to present their candidatures on party lists and fully participate in the elections in this capacity. The number of votes cast for each of the applicants, and the good overall results for the SR in St Petersburg (the party came second in the LA elections and third in the State Duma elections) showed that the elections were free and pluralistic. There existed no guarantee of being elected, so long as the general requirements of free expression of the will of the people were complied with. The St Petersburg regional list of the SR, which concerned five applicants (Mr Davydov, Mr Payalin, Mr Truskanov, Ms Pushkareva and Mr Shestakov) numbered over fifty candidates, and the top twelve were elected to the LA. These five applicants retained their positions on the party’s list and would be eligible for replacing candidates at the LA, should any of the serving SR members lose their mandate. The five applicants continued their political activity; some of them were elected to municipal councils (Mr Shestakov and Mr Truskanov), others stood in the municipal elections in 2014, with varying results. The fact that there had to be recounts in some precincts, under the guarantees set by the applicable legislation, could not be interpreted as interference. Moreover, the results of the recounts demonstrated that the gains and losses had not been uniformly in favour of or to the detriment of any particular party; contrary to the applicants’ assertions, in many constituencies ER had lost votes, and the SR had gained or remained equal.
  3. Alternatively, the Government argued that any limitation had been proportionate to the aims that could be considered legitimate in the context of democratic elections, including the protection of State sovereignty and democratic order; protection of the voters’ and candidates’ rights; adequate counting of votes and reflection of their results; and prevention of distortion of the voters’ will which could lead to violation of the principle of democratic government, which last was a fundamental constitutional principle of the Russian Federation. They reiterated that a wide margin of appreciation was accorded to States in the electoral sphere (the Government referred to the Court’s judgments in cases of Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, §§ 52 and 54 Series A no. 113; Yumak and Sadak v. Turkey [GC], no. 10226/03, § 109, ECHR 2008; v. Latvia [GC], no. 58278/00, §§ 100, 110, 132 and 135, ECHR 2006-IV, ECHR 2008; and others) and argued that this margin had not been overstepped in the present case.

(ii) On the effectiveness of the consideration of the applicants’ complaints

  1. In so far as some of the applicants had sought criminal proceedings, the Government were of the opinion that the conclusions of the law-enforcement authorities had been well founded. Thus, applicants two, three and four had written to the St Petersburg Investigative Committee on 6 December 2011 alleging electoral fraud. In response, on 14 February 2012 the Kolpino District Prosecutor had found no reasons to proceed with the criminal investigation, because the actions of the electoral commissions were susceptible to judicial review. Only the third applicant appealed against that decision to a court, and on 11 July 2012 the St Petersburg City Court concluded that the investigative committee was obliged to consider the applicant’s request. On 21 August 2012 the Kolpino District Department of the Investigative Committee decided that no breach of electoral legislation had occurred at PEC no. 651. The difference in results raised by the applicants was explained by the recounts conducted by the competent TEC. Similar decisions were taken on complaints launched by other applicants (see section E above).
  2. The Government also reiterated that the inquiry into the possible falsification of the “original” results protocols had led to the conclusion that no crime had been committed, although the expert report retained doubts as to the authenticity of some of the documents relied upon by the applicants (see section J above).
  3. In so far as the applicants alleged that the courts had failed to give their complaints effective consideration, the Government argued, first, that the proceedings in question could not be judged by the standards of Article 6 of the Convention, which was not applicable. As an alternative argument, the Government submitted that the courts had effectively considered all the questions raised by the applicants in their complaints, and that they had examined all the relevant sources of information and all documents which could be obtained. In so far as at least some of the applicants could be considered to have exhausted domestic remedies, the courts had carefully examined their allegations and evaluated them in line with the rules on examination of evidence established by the national legislation. General rules on admissibility and relevance of evidence, the burden of proof, and jurisdiction were correctly applied by the courts. Their conclusions cannot be considered arbitrary (the Government referred to I.Z. v. Greece, no. 18997/91, Commission decision of 28 February 1994, Decisions and Reports (DR) 76-B, p. 65, at p. 68, and Babenko v. Ukraine (dec.), no. 43476/98, 15 September 1998).
  4. In their additional observations of 22 May 2015 the Government observed that judicial review of an alleged breach of electoral law does not necessarily lead to election results being declared void. In order for a court to cancel the outcome of the voting or the results of election, the breaches should be so serious as to thwart the free expression of the voters’ opinion and thus inadequately reflect the voters’ will in the results of elections.
  5. More specifically, as far as the proceedings concerning the validity of elections before the St Petersburg City Court initiated by the SR are concerned (see paragraphs 108 – 111 above), the Government were of the opinion that the City Court was correct in focusing on the procedure followed at the City Electoral Commission, as the Commission was best placed to answer this type of complaint.
  6. The Government also commented on the proceedings at the Kolpino District Court initiated by the sixth applicant in respect of the results of the elections in precinct no. 637 (see paragraphs 112 – 125 above). The trial and appeal courts have carried out a detailed and well-reasoned review of the applicant’s allegations. They carefully examined all the relevant evidence and correctly concluded that the “copy” presented by the applicant could not be treated as valid evidence of a different outcome of the election, in view of that document’s formal deficiencies. On the contrary, the final results were based on the decision of TEC no. 21 of 5 December 2011 to order a recount and a copy of the results protocol following that recount, produced by PEC no. 637 and duly certified. The applicant’s pleas to the electoral commissions for additional witnesses to be called were aimed at proving a “factitious” allegation that the recount had not taken place, or that it had been carried out in breach of existing rules. The courts had correctly based their findings on the valid documents and had dismissed unfounded allegations.
  7. Similarly, the examination of the claim about the outcome of elections in entire divisions nos. 18 and 19 had been in line with the applicable national standards and had taken into account all valid and relevant evidence presented by the parties (see paragraphs 126 – 141 above). The Kolpino District Court called and questioned a total of twenty-four witnesses; it also attempted to call additional witnesses, in accordance with the parties’ requests. The court was unable to treat the documents submitted by the applicant as valid evidence of the results of the election. The trial court judgment was based on a large amount of evidence examined during the hearing, and the well-foundedness of its conclusions was confirmed by the appeal court. The Government raised similar arguments in respect of the proceedings at the Kolpino District Court initiated by the SR (see paragraphs 142 – 143 above).
  8. The Government questioned the relevance of the examples of similar decisions taken by other St Petersburg district courts following complaints lodged by the SR (see paragraph 192 above). They stressed that in these proceedings the courts were unable to obtain any evidence of falsification of the election results. The courts had established, on the basis of valid evidence and witness statements and in respect of each precinct concerned, that the “originals” relied upon by the claimant had been prepared by observers prior to the drawing up of the final results, and that those documents had not been properly checked or certified. On the contrary, the recounts themselves, which were ordered by the territorial commissions whenever there were doubts or complaints about the results, proved that the system strained to achieve the most correct reflection of the voters’ will. The courts pondered upon and rejected, where it was justified, requests for additional witnesses to be called in order to establish the exact circumstances in which the recounts were held.
  9. Finally, the Government rejected the applicant’s allegation that the courts had applied different standards in accepting evidence submitted by the claimants and the electoral commissions. They stressed that the courts had accorded individual evaluation to each piece of evidence, their conclusions were based on law and were explained in the judgments.

(iii) On the composition of and procedure at the electoral commissions

  1. The Government denied that there were any reasons to suspect the City Commission or TECs of partiality. These commissions functioned on a permanent basis and had between five and fourteen members, appointed for five years. Each political party present in the regional legislature was entitled to appoint its members. PECs were created for the duration of the elections, also on the basis of multi-party representation. Each party had no more than one voting member.
  2. The Government also reiterated that in addition to the voting members of the electoral commissions, parties and electoral unions could appoint observer members. During the elections of December 2011 in St Petersburg, a total of 6,091 observers were appointed, of whom 1,507 were nominees of the SR and 1,217 of ER. This constituted an additional guarantee of impartiality of electoral commissions, and the parties concerned could have used this instrument.
  3. In respect of the two “temporary” PECs formed in precincts nos. 1852 and 1853, the Government stressed, in their additional observations, that their creation and composition had been based on the information about the supposed number of voters (up to 1,000 in each) submitted by the administration of the OAO Kirovskiy Zavod, and in accordance with the applicable legal provisions (see paragraphs 40 and 144 – 145 above). The applicants did not challenge the lawfulness of the setting up of these two particular commissions.
  4. The Government pointed out that the applicants had failed to seek to hold the chairpersons and members of the PECs administratively responsible for supplying them with the allegedly incorrect election results.
  5. The Government then reiterated the procedure for recounts conducted by PECs and TECs. They submitted that of the ninety-nine precincts initially concerned, forty-eight had had recounts (see paragraphs 158 – 167 above). The recounts were aimed at the establishment of the correct outcome of the voting, and the applicable procedures had been carefully observed. The results of this recount cannot be put in question. In particular, where the applicants pointed to the testimony in court of a member of TEC no. 21 to prove that the recount had been conducted in breach of the existing rules (see paragraphs 137 – 138 above), the Government retorted that of the twenty-four precinct recounts only eleven had been conducted by Territorial Commission no. 21 (PECs nos. 638, 646, 651, 652, 654, 657, 662, 664, 667 and 668). This recount had been conducted in accordance with the applicable rules, and the new results had been certified by a majority of the TEC members, as stipulated by the law. Recounts in four precincts (PECs nos. 637, 641, 661 and 666) were conducted by the PECs concerned, and were also attested to by their members’ signatures. The District Court in its judgment of 16 July 2012 had correctly assessed the evidence submitted, including the TEC member’s witness statement, and had concluded that the alleged violations had not taken place (paragraphs 126 – 141 above).
  6. In so far as the applicants alleged that the TECs had breached procedure in ordering the recounts in the absence of written complaints about breaches of procedure at precinct levels, the Government countered that the TECs were empowered to act to dispel any doubts as to the correct establishment of the election results. The copies of the relevant reports of the TEC decisions (the Government referred to TECs nos. 3, 4, 7, 21 and 27), showed that the decisions had been taken, in each case, upon weighty grounds, and by lawful composition, namely a majority of members. All commissions were collegial bodies, based on multi-party representation, and each member had only one vote. Copies of these decisions were presented to the Court (see paragraphs 154 – 157 above). All these decisions had been made public and had not been appealed against by the applicants or by the TEC members who were absent during the recounts. The law does not stipulate which commission, precinct or territorial, should conduct recounts; it depends on the practical circumstances of the case. As to the method of conducting recounts, the Government explained that “unlike the [initial] procedure of determination of the election results, recounts mean recounting the ballot papers which have already been sorted (packed in stacks), which considerably accelerates the procedure. That is why the number of ballot papers found in… ballot boxes cannot serve as a criterion for determination of the length of time recounts take” [p. 262 of additional observations].
  7. Overall, on the composition and functioning of electoral commissions, the Government were of the opinion that the composition of these commissions was well balanced: they included representatives from all parties concerned, each with a single vote; and that the applicants had failed to submit “any sufficient proof of particular acts of abuse of power or electoral fraud committed within the electoral commissions to the applicant party’s detriment” (citing the case of Georgian Labour Party v. Georgia, no. 9103/04, § 110, ECHR 2008).
  8. In their additional observations of 22 May 2015, the Government mentioned that the CEC had granted up to 40% of the complaints lodged with it (without referring to the relevant dates or the source of those data). They disagreed that there existed lack of clarity in distribution of competencies between the electoral commissions and the law-enforcement authorities, as alleged by the applicants. They stressed that the commissions involved had acted in line with their competence, and constituted effective and independent bodies tasked with consideration of complaints about breaches of electoral legislation – unless there were reasons to suspect the criminal offence of falsifying documents.

 

  1. The Court’s assessment

 

(a) General principles

  1. Article 3 of Protocol No. 1 to the Convention enshrines a principle that is characteristic of an effective political democracy and is accordingly of prime importance in the Convention system (see Mathieu-Mohin and Clerfayt, cited above, § 47). This Article would appear at first to differ from the other provisions of the Convention and its Protocols, as it is phrased in terms of the obligation of the High Contracting Parties to hold elections under conditions which ensure the free expression of the opinion of the people, rather than in terms of a particular right or freedom. However, the Court has established that it guarantees individual rights, including the right to vote and to stand for election (ibid., §§ 46 – 51).
  2. The Court has consistently highlighted the importance of the democratic principles underlying the interpretation and application of the Convention, and has emphasised that the rights guaranteed under Article 3 of Protocol No. 1 to the Convention are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law (see Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 58, ECHR 2005-IX). Nonetheless, those rights are not absolute. There is room for “implied limitations”, and Contracting States are given a margin of appreciation in this sphere (see Matthews v. the United Kingdom [GC], no. 24833/94, § 63, ECHR 1999-I; Labita v. Italy [GC], no. 26772/95, § 201, ECHR 2000-IV; and Podkolzina v. Latvia, no. 46726/99, § 33, ECHR 2002-II). While the Contracting States enjoy a wide margin of appreciation in imposing conditions on the right to vote and to stand for election, it is for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 to the Convention have been complied with; it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate or arbitrary (see Mathieu-Mohin and Clerfayt, cited above, § 52, and Yumak and Sadak, cited above, § 109 (iii)).
  3. Furthermore, the object and purpose of the Convention, which is an instrument for the protection of human rights, requires its provisions to be interpreted and applied in such a way as to make their stipulations not theoretical or illusory, but practical and effective (see, among many other authorities, United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 33, Reports of Judgments and Decisions 1998-I, and Lykourezos v. Greece, no. 33554/03, § 56, ECHR 2006-VIII). Although originally stated in connection with the conditions on eligibility to stand for election, the principle requiring prevention of arbitrariness is equally relevant in other situations where the effectiveness of individual electoral rights is at stake (see Namat Aliyev, cited above, § 72), including the manner of review of the outcome of elections (see Kovach, cited above, § 55).
  4. The Court has established that the existence of a domestic system for the effective examination of individual complaints and appeals in matters concerning electoral rights is one of the essential guarantees of free and fair elections. Such a system ensures an effective exercise of individual rights to vote and to stand for election, maintains general confidence in the State’s administration of the electoral process, and constitutes an important device at the State’s disposal in achieving the fulfilment of its positive duty under Article 3 of Protocol No. 1 to the Convention to hold democratic elections. Indeed, the State’s solemn undertaking under Article 3 of Protocol No. 1 to the Convention and the individual rights guaranteed by that provision would be illusory if, throughout the electoral process, specific instances indicative of failure to ensure democratic elections are not open to challenge by individuals before a competent domestic body capable of effectively dealing with the matter (see Namat Aliyev, cited above, § 81).
  5. The Court has also emphasised that it is important for the authorities in charge of electoral administration to function in a transparent manner and to maintain impartiality and independence from political manipulation (see Georgian Labour Party, cited above, § 101) and for their decisions to be sufficiently well reasoned (see Namat Aliyev, cited above, §§ 81 – 90).
  6. As to the facts in dispute, the Court is not required under Article 3 of Protocol No. 1 to the Convention to verify whether every particular alleged irregularity amounted to a breach of domestic electoral law (see I.Z. v. Greece, cited above, § 68). The Court is not in a position to assume a fact-finding role by attempting to determine whether all or some of these alleged irregularities have taken place and, if so, whether they amounted to irregularities capable of thwarting the free expression of the people’s opinion. Owing to the subsidiary nature of its role, the Court needs to be wary of assuming the function of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. Its task is nevertheless to satisfy itself, from a more general standpoint, that the respondent State has complied with its obligation to hold elections under free and fair conditions and has ensured that individual electoral rights were exercised effectively (see Namat Aliyev, cited above, § 77, and Gahramanli and Others v. Azerbaijan, no. 36503/11, § 72, 8 October 2015).
  7. In this connection, the Court considers that in cases where it is alleged that the breach of the domestic legal rules was such that it seriously undermined the legitimacy of the election as a whole, Article 3 of Protocol No. 1 to the Convention requires it to assess whether such a breach has taken place and has resulted in a failure to hold free and fair elections. In doing so, the Court may have regard to whether an assessment in this respect has been made by the domestic courts; if it has been made, the Court may review whether or not the domestic courts’ finding was arbitrary (see Kovach, cited above, § 55; and Karimov v. Azerbaijan, no. 12535/06, § 43, 25 September 2014).

(b) Application in the present case

(i) Applicability of Article 3 of Protocol No. 1 to the Convention

  1. It is clear that the elections to the State Duma qualify as the elections of a legislature in terms of Article 3 of Protocol No. 1. The parties also do not dispute the applicability of Article 3 of Protocol No. 1 to the Convention to the elections to the St Petersburg LA, the legislative body of a constituent subject of the Russian Federation (see, for similar situation, Antonenko v. Russia, no. 42482/02 (dec.), 23 May 2006, where the parties and the Court did not dispute the applicability of the provision). The Court reiterates here that the word “legislature” in Article 3 of Protocol No. 1 to the Convention does not necessarily mean the national parliament: the word has to be interpreted in the light of the constitutional structure of the State in question (see Mathieu-Mohin and Clerfayt, § 53, and Matthews, § 40, both cited above). It has therefore found the term to encompass the Flemish Council in Belgium, on the basis that constitutional reform had vested in it sufficient competence and powers to make it, alongside the French Community Council and the Walloon Regional Council, a constituent part of the Belgian “legislature”, in addition to the House of Representatives and the Senate (Mathieu-Mohin and Clerfayt, cited above, § 53). Similarly, regional and councils were held to form constituent parts of the legislature in Italy, Austria and Germany (see Vito Sante Santoro v. Italy, no. 36681/97, §§ 52 – 53, ECHR 2004-VI; X v. Austria, no. 7008/75, decision of 12 July 1976, Decisions and Reports (DR) 6, p. 120; and Timke v. Germany, no. 27311/95, decision of 11 September 1995, DR 82-A, p. 158).
  2. Under Article 73 of the Constitution of the Russian Federation, subjects of the Federation possess the full authority of the Russian State in all matters other than those that come within the sole jurisdiction of the federal government or within the shared jurisdiction of federal subjects and the federal government to the degree of the latter’s scope of authority. The St Petersburg Legislative Assembly is a democratic government body of one of the subjects of the Russian Federation, vested with a wide range of powers in the constituent territory, based on the constitutional separation of powers between the regions and the Federation. The Court confirms that, as such, it falls under the definition of “legislature” in the meaning of Article 3 of Protocol No. 1 to the Convention.

(ii) Nature of the alleged violation

  1. The applicants complained of several breaches of the right to free elections during the election of two legislative bodies – the St Petersburg LA and the State Duma. The most common complaint is that in the election to the LA there existed a difference between the results obtained by the political parties, as recorded initially after counting by precinct commissions, and the official results published by the City Electoral Commission. As a corollary, the applicants submitted that the domestic authorities had failed to ensure an effective review of this allegation, in breach of their positive obligation under Article 3 of Protocol No. 1 to the Convention. Four applicants (the second to the fifth applicants) questioned, for the same reasons, the outcome of the elections to the State Duma in their respective precincts. The Court will focus its analysis on this complaint.
  2. The Government denied that any real difference existed between the results recorded in the protocols drawn up at the PECs and those published by the City Electoral Commission. They pointed to the procedural deficiencies in the copies of the “original” results protocols, and insisted that they could not serve as valid evidence of the existence of results which were different from the official ones. In their view, this issue was carefully examined by the competent authorities wherever the applicants had sought such a review, and thus there was no breach of the positive obligation to set up an efficient system of examination of complaints. At the same time, they accepted that the results obtained in some precincts had been subject to recount; however the recount procedure was in accordance with the law and its results were not so unequivocally to the detriment of the opposition parties as the applicants had alleged. In that, the Government both denied the existence of the breach alleged, and submitted that the positive obligation of review had been complied with.
  3. The Court notes that each of the applicants challenged the official results in at least one electoral precinct of St Petersburg (see Appendix for a summary of complaints). In doing so, they relied on a number of factual allegations to show that the results for various political parties had changed between the time the PECs had completed the counting and the time the results were tabulated and entered into the system at the territorial level. They provided copies of PEC results protocols which contained different figures from those officially published, and submitted that no real explanation for this difference had been provided. As a result of this difference, the applicants argued, the free expression of the will of the people in the choice of legislature has been thwarted; in addition, some applicants’ passive electoral rights to become a member of the LA have been infringed.
  4. The Court recalls that the Venice Commission Code devotes significant attention to the process of counting, transfer and tabulation of results, insisting that this process must be transparent and open, and that observers and candidates’ representatives must be allowed to be present and to obtain copies of the records drawn up (see p. 3.2 of the Code, paragraph 196 above). In the same vein, the Explanatory Report to the Code contains some additional recommendations applicable to the process of counting, recording of results and their transfer to the higher authority (see Explanatory Report, pp. 3.2.2.4. Counting and 3.2.2.5. Transferring the results, paragraph 196 above). The Report suggests that observers, media and others authorised to be present at the polling station should be allowed to be present during the count, and that there should be “enough copies of the record of the proceedings to ensure that all the aforementioned persons receive one”. Furthermore, transmission of the results – “a vital operation whose importance is often overlooked” – should also be carried out in an open and controlled manner, where the person transmitting the results,- usually the presiding officer of the polling station, should be accompanied by other members of the polling station representing opposition parties, if necessary under additional security (ibid.).
  5. These detailed recommendations reflect the importance of technical details which can be crucial in ensuring an open and transparent procedure of ascertaining the voters’ will through counting of ballot papers and the accurate recording of election results throughout the system, from the local polling station to the Central Electoral Commission. They confirm that, in the eyes of the Code of Good Practice in Electoral Matters, the post-voting stages covering counting, recording and transfer of the election results form an indispensable part of the election process. As such, they should be achieved with clear procedural guarantees, be open and transparent, and allow observation by all members across the political spectrum, including opposition, in order to ensure the realisation of the principle of the voters’ freedom to express their will and the need to combat electoral fraud.
  6. It is true that Article 3 of Protocol No. 1 to the Convention was not conceived as a code on electoral matters designed to regulate all aspects of the electoral process (see Communist Party of Russia and Others v. Russia, no. 29400/05, § 108, 19 June 2012). However, the Court has already confirmed that the common principles of the European constitutional heritage, which form the basis of any genuinely democratic society, enshrine within themselves the right to vote in terms of the opportunity to cast a vote in universal, equal, free, secret and direct elections held at regular intervals (see the Guidelines on Elections, paragraph 196 above). Article 3 of Protocol No. 1 to the Convention explicitly provides for the right to free elections at regular intervals by secret ballot, and other principles have also been recognised in the Convention institutions’ case-law (see Russian Conservative Party of Entrepreneurs and Others, cited above, § 70). In this setting, free elections are to be seen as both an individual right and a positive obligation of the State, comprising a number of guarantees starting from the right of the voters to form an opinion freely, and up to careful regulation of the process in which the results of voting are ascertained, processed and recorded.
  7. At the same time, the Court reiterates that the level of its own scrutiny would depend on the aspect of the right to free elections. Thus, tighter scrutiny should be reserved for any departures from the principle of universal suffrage (see Hirst (no. 2), cited above, § 62). A broader margin of appreciation can be afforded to States where the measures prevent candidates from standing for elections, but such interference should not be disproportionate (see Krasnov and Skuratov v. Russia, nos. 17864/04 and 21396/04, § 65, 19 July 2007, and Russian Conservative Party of Entrepreneurs and Others, cited above, § 65).
  8. A still less stringent scrutiny would apply to the more technical stage of vote counting and tabulation. Due regard must be given to the fact that this is a complex process, with many persons involved at several levels. A mere mistake or irregularity at this stage would not, per se, signify unfairness of the elections, if the general principles of equality, transparency, impartiality and independence of the electoral administration are complied with. The concept of free elections would be put at risk only if there is evidence of procedural breaches that would be capable of thwarting the free expression of the opinion of the people, for instance through gross distortion of the voters’ intent; and where such complaints receive no effective examination at the domestic level. Moreover, the Court should be cautious to confer unrestricted standing to challenge this stage of elections to individual participants of the electoral process. This is especially so where the domestic legislation contains reasonable restrictions on the individual voters’ ability to challenge the results in their respective constituencies, such as quorum of voters (see p. 3.3 (f) of the Code of Good Practices, paragraph 196 above). Nevertheless, the States should ensure such access to the appeal system that would be sufficient to make the guarantees under Article 3 of Protocol No. 1 effective throughout the electoral cycle. In the Russian context, the Constitutional Court ruling of 22 April 2013 confirmed the standing of individual voters to challenge the results in the constituencies where they had voted; subsequent legislative changes ensured such standing (see paragraph 188 above).
  9. The Court therefore confirms that only serious breaches in the process of counting and tabulation of votes, that remained without an effective examination at the domestic level, can constitute a breach of the individual right to free elections guaranteed under Article 3 of Protocol No. 1 to the Convention, in both its active and its passive aspects. In line with its subsidiary role, the Court’s task would be limited to ensuring that such examination afforded minimum procedural guarantees and that the findings of the domestic instances were not arbitrary or manifestly unreasonable (see Communist Party of Russia and Others, cited above, §§ 116 – 17). It will proceed to analyse the applicants’ complaints accordingly.

(iii) Whether the applicants have made out a claim of serious irregularities

  1. The first question to ask is whether the applicants have put forward a serious and arguable claim disclosing an apparent failure to hold free and fair elections in their constituencies (see Gahramanli and Others, cited above, § 73). In order to answer that question, the Court will examine the parties’ submissions and statistical and other data.

Recapitulation of the parties’ relevant submissions

  1. First, the Court notes that each applicant submitted sufficiently detailed and concordant information about the violations alleged. Thus, the first five applicants, in various capacities, have challenged the outcome of the LA elections in thirty-five precincts in the Kolpino District of St Petersburg, electoral division no. 19. Four applicants challenging the results of elections to the State Duma presented relevant information in this respect, too (applicants two, three, four and five). They presented copies of the results protocols for twenty-one precincts, compiled and certified by the relevant PECs, which they had obtained either in their capacity as candidate for the SR (the first applicant, see paragraph 20 above), or as voting members of the PECs concerned (applicants two to five, see paragraphs 29 – 34 above).
  2. The sixth applicant’s complaint concerns the precinct in which he was a simple voter, but he obtained a copy of the “original” document from an observer at that polling station (see paragraph 35 above).
  3. The ninth applicant challenged the official results in ten precincts of electoral division no. 17, and, as a candidate of the SR, had obtained copies of the “original” protocols compiled by the PECs from observers and voting members from that party (see paragraph 39 above).
  4. The tenth applicant challenged the official results in eighteen precincts of electoral division no. 33, and, as a candidate of the SR, had obtained copies of the “original” protocols compiled by the PECs from observers and voting members from that party (see paragraph 41 above). The eleventh applicant, who challenged the results in thirteen precincts of electoral division no. 15, was in a similar position (see paragraph 43 above).
  5. The Court notes that while many of the applicants’ allegations are contested by the Government, a number of important assertions are confirmed by the information contained in the Government’s submissions and official documents. Aware of the limits of its own fact-finding in this type of case (see paragraph 276 above), the Court will first focus on the elements that are not disputed by the parties.

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